Acosta et al v. Tyson Foods

Filing 56

PROTECTIVE ORDER- Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA M AN U E L ACOSTA, LOUIS MONTOYA a n d MARTIN HINOJOSA o n behalf themselves and all other s im ila rly situated individuals, P la in t i f f s , vs. T Y S O N FOODS, INC., d /b /a / Tyson Fresh Meats, Inc., D e fen d a n t. ) ) ) ) ) ) ) ) ) ) ) ) )

8 :0 8 C V8 6

ORDER

P R O T E C T IV E ORDER

Plaintiffs and defendant, Tyson Foods Inc., have stipulated and requested the Court enter a protective order pursuant to Fed.R.Civ.P. 26(c), to ensure and maintain the confidentiality of certain records and materials plaintiffs or defendant may produce in response to pretrial discovery requests. The parties anticipate discovery will involve sensitive confidential information related to defendant's employees and business practices.
A c c o r d in g ly, IT IS ORDERED: 1. P u rs u a n t to Rule 26(c) of the Federal Rules of Civil Procedure, the parties may All documents,

d e s ig n a te documents, information and/or materials as "confidential."

in fo rm a tio n , or materials designated as "confidential" shall be entitled to protection as p ro v id e d for in this order. Documents, information, or materials that may be designated as "c o n fid e n tia l" include: (a) sensitive personnel-related information, including performance e v a lu a tio n s, reasons for absences, social security numbers, blueprints, wage information, p e rs o n n e l files, or other employment-related materials concerning defendant's present and

fo rm e r employees, including plaintiffs; (b) proprietary, confidential, commercially valuable, a n d /o r competitively sensitive information concerning defendant that is produced or o th e rw is e conveyed during this litigation to plaintiffs, including but not limited to: sensitive m a n a g e m e n t and employee training materials, payroll information, and management p o lic ie s , handbooks, and/or manuals not shared with hourly employees; and (c) business in fo rm a tio n as to which disclosure would pose a threat of competitive injury to defendant or c re a te annoyance, embarrassment, or oppression. If any party determines that any of its a n sw e rs to written discovery requests, production, and/or deposition testimony, or those of a third party, contain "confidential" information, the specific item or passage of testimony s h a ll be marked "confidential" and shall not be disclosed to any third parties except as p ro v id e d in this order and agreement. 2. It is expressly understood that this order and agreement shall not apply to any

fo rm e rly "confidential" information that defendant has made known or makes known to or a v a ila b le for use to the public and/or the industry in which defendant is engaged. 3. P la in tiffs and defendant have the right to designate as "confidential" materials

p ro d u c e d , disclosed, or possessed by each other. If a party does not agree with the d e s ig n a tio n , it shall nevertheless treat the documents or information as "confidential" until s u c h time as this Court determines that such materials are not entitled to be treated as "c o n fid e n tia l." In the event that any party disagrees with the designation of any item as "c o n fid e n tia l" and subject to this protective order, that party shall send a written notice to o p p o s in g counsel specifying the items in question and the basis for the objection no later th a n 30 days prior to the discovery deadline. In the event that the parties cannot reach an a g re e m e n t concerning the confidentiality of the items in question, the party proposing
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c o n fid e n tia lity and designating the items as confidential shall, within 30 days after the receipt o f the objection to the designation, file a motion with the Court requesting a determination a s to whether the item is properly subject to this protective order. The burden of proof and p e rs u a s io n shall be on the party proposing confidentiality.

A deposition transcript shall be treated as "confidential" for a period of 11 days following the transmission of the transcript to counsel. During that 11-day period, counsel for the parties may designate specific portions of the transcript as "confidential." Objections to such designation shall be addressed pursuant to the procedures in this paragraph.
4. A ll documents, information, and materials designated as "confidential" shall be

m a in ta in e d as "confidential" and shall not be used except in connection with the litigation of th is matter. Documents, information, and materials designated as "confidential" may be d is c lo s e d by the opposing counsel only to the Court, Court personnel, jury members, counsel o f record for the parties (including all attorneys and support staff of the law firm), defendant's in - h o u s e counsel, or pursuant to the provisions of paragraph 7, below. Individual plaintiffs s h a ll be permitted to view documents, information, and other materials that are solely related to their personal information, regardless of whether the information is designated as "c o n fid e n tia l" or not ­ in doing so, the confidential information of other plaintiffs or individuals s h a ll not be disclosed to the individual plaintiff. Representative plaintiffs will be entitled to re v ie w confidential information about the action, but must first read and sign a copy of Exhibit A , "Statement of Confidentiality," which is attached hereto. The parties shall not otherwise d is c lo s e any "confidential" documents, information, and materials except pursuant to a w r itte n agreement by counsel, or absent such agreement, pursuant to an order of this Court
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u p o n motion duly made. Nothing in this protective order shall limit any party or person in the u s e of its own documents, information, or things for any purpose. Nothing in this order shall p re c lu d e the receiving party from using "confidential" data to make reports or create s im u la tio n s , but such work product shall itself be deemed "confidential." 5. In the event that any "confidential" materials will be included with, or the

c o n te n ts thereof are in any way disclosed in any pleading, motion, deposition transcript, or o th e r document filed with the Court, the party intending to file such material shall file a m o tio n with the Court requesting to file such information under seal pursuant to Local Rule 5 .1 (c ). 6. T h e inadvertent disclosure of any document, communication or material

(h e re in a fte r collectively referred to as "Document") that is subject to a legitimate claim that th e Document(s) should have been withheld from disclosure as material protected by the A tto r n e y-C lie n t Privilege, W o r k Product Doctrine, or other available privilege or protective d o c trin e , shall NOT constitute a waiver of any such privilege or other applicable protective d o ctrin e for that Document, for any associated or related undisclosed communications, or D o c u m e n t(s ), or for the subject matter of the inadvertently disclosed Document(s), if the p ro d u c in g party took precautions to avoid such inadvertent disclosure and if, upon becoming a w a re of the disclosure, requests return of the inadvertently disclosed Document(s). The p a rtie s agree, and the Court orders, that one "precaution" that satisfies the preceding p a ra g ra p h is for Tyson's counsel to assign an attorney or person, subject to the supervision o f an attorney, to review the ESI documents collected as a result of the preceding paragraph b e fo re such documents are produced to Plaintiffs. Upon being notified by the producing p a rty of the inadvertent disclosure, the receiving party must promptly return or destroy the
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s p e cifie d information or Document(s) and any copies it has, must not use or disclose the in fo rm a ti o n or Document(s) until the claim is resolved, and must take reasonable steps to re trie ve the information or Document(s) if the party disclosed it before being notified of the in a d v e rte n t disclosure. 7. A party may disclose documents, information, and materials designated as

"c o n fid e n tia l" by the opposing party to experts, consultants, deposition witnesses, and/or o th e r witnesses (including individual parties) who have a need to review the material solely in connection with their potential and actual testimony in this action and who agree to be b o u n d by this order. Any third parties provided access to information, documents, or m a te ria ls designated as "confidential" shall not disclose that information except in deposition, e x p e rt report, or court testimony.

Any person, other than the Court or counsel as specified in paragraph 4, who is to obtain access to "confidential" materials pursuant to this order shall, consistent with the above provisions and prior to the receipt of such "confidential" materials, sign a copy of the "Statement of Confidentiality" attached as Exhibit A, agreeing to abide by the terms of this order and to submit to the jurisdiction of this Court for enforcement of the terms of this order. Any signed statement of confidentiality shall be forwarded to opposing counsel within 10 days of the final disposition of this matter.
8. N o th in g in this order and agreement shall prohibit the parties from using

"c o n fid e n tia l" documents and information in depositions conducted in this litigation, provided th a t the deponent agrees to be bound by this order and agreement. In the event that a d e p o n e n t declines a request by either party to execute a statement of confidentiality (Exhibit

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A ) agreeing to be bound by the terms and provisions of this order and agreement, no "c o n fid e n tia l" information, documents, or other materials shall be disclosed to the deponent u n l e s s and until the party conducting the deposition has had a reasonable opportunity to s e e k either an order from the Court compelling the deponent to agree to this protective order o r some other form of relief. 9. T h is order and agreement does not affect the right of defendant to use

"c o n fid e n tia l" documents or information in the ordinary course of business, so long as they a re specifically treated as confidential. 10. T h e termination of this action shall not relieve any person to whom

"c o n fid e n tia l" materials have been provided or disclosed from the obligations of this order a n d agreement, unless the Court so orders or the parties otherwise agree. The parties a g re e that either may seek leave to reopen this action after final disposition in order to seek e n f o r c e m e n t of the provisions of this protective order. 11. N o later than 60 days prior to trial the parties shall confer about the use of

"c o n fid e n tia l" information at trial, and thereafter may raise the issue with the Court as n e e d e d . In the event that any "confidential" materials are used in any Court proceeding h e re in , such material shall not lose its "confidential" status through such use, and the parties s h a ll take steps reasonably required to protect its confidentiality during such use. 12. T h e terms of this order shall continue unless and until modified and/or

te rm in a te d by further order of this Court or by agreement of the parties. Any party may apply to the Court at any time for the modification or exception to this order. 13. O n c e this matter is concluded, whether by settlement or by final order not

a p pe a le d , all "confidential" materials shall be promptly destroyed or returned to the producing
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p a rty within 30 days, except that briefs and other pleadings prepared for use in this litigation n e e d not be returned or destroyed but shall be kept "confidential." Counsel for each of the p a rtie s shall certify, in writing, to opposing counsel that all "confidential" materials, including a ll copies and all materials provided to any person pursuant to paragraph 6 herein, have b e e n returned or destroyed. 14. If a request to file documents under seal is granted pursuant to paragraph 5

h e re in , all "confidential" materials filed with the Court shall be withdrawn by the party that file d such material and returned to the producing party, if applicable, within 40 days of the e n try of a final Order disposing of the action on the merits or by agreement of the parties. D u rin g the course of this litigation, the parties, by their counsel only, shall be entitled to view or withdraw "confidential" materials held by the Court by providing the Clerk with a c o p y of this Order and appropriate identification verifying that they have entered an a p p e a ra n c e in this action.

DATED this 29th day of March, 2010. B Y THE COURT:

s /T h o m a s D. Thalken U n ite d States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MANUEL ACOSTA, LOUIS MONTOYA and MARTIN HINOJOSA on behalf themselves and all other similarly situated individuals, Plaintiffs, vs. TYSON FOODS, INC., d/b/a/ Tyson Fresh Meats, Inc., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

8:08CV86

ORDER

Exhibit A The undersigned states that he or she has read the Protective Order entered in the case of Acosta, et al v. Tyson Foods Inc., Case Number 8:08CV86, District of Nebraska; agrees in return for the right to have access to the confidential materials in that case to comply with the terms of the Protective Order; and submits to the personal jurisdiction of the Federal District Court for the District of Nebraska, for the purpose of enforcement of this Protective Order. This ___ day of ________, 2010. Signature: Name Printed: _________________________________ _________________________________

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